Press Freedoms

An exchange between Gabriel Schoenfeld and readers on his February 2007 piece, "Why Journalists Are Not Above the Law."

Gabriel Schoenfeld’s argument that Congress should not create a legal privilege under which journalists could shield their sources seriously misconceives the issue [“Why Journalists Are Not Above the Law,” February].

At the core of Mr. Schoenfeld’s case is his assertion that Justice Byron White was right to reject a First Amendment-based privilege in the Supreme Court’s 1972 decision in Branzburg v. Hayes, and that the same reasoning that justified White’s conclusion also justifies the rejection of a legislatively enacted privilege. But this is simply wrong. Whatever one thinks of the Court’s five-to-four decision in Branz-burg, its reasoning has almost no bearing on a statutory privilege.

Constitutional law sets a minimum baseline for the protection of individual liberties. It does not define the ceiling of such liberties. That a particular practice or policy does not violate the Constitution does not mean that it is good policy. This is evident in an endless list of laws that go far beyond constitutional requirements in supporting individual rights, ranging from the Civil Rights Act of 1964 to legislative restrictions on certain surveillance practices, tax exemptions for religious organizations, and regulations of the electoral process.

To justify its decision in Branzburg, the Court relied on two important First Amendment doctrines, neither of which is relevant to the issue of federal legislation. Indeed, that is why, despite Branzburg, 49 states and the District of Columbia have felt comfortable recognizing a journalist-source privilege.

First, the Supreme Court has traditionally been reluctant to invalidate a law merely because it has an incidental effect on First Amendment freedoms. Laws that directly regulate expression (e.g., “No one may distribute leaflets at the mall”) are the central concern of the First Amendment. Laws that only incidentally affect free expression (e.g., a speed limit preventing someone from getting to a demonstration on time) will almost never violate the First Amendment. To avoid intractable and ad-hoc linedrawing, the Court simply presumes that laws of general application are constitutional, even as applied to speakers and journalists. Predictably, this was the principle invoked in Branzburg.

Although this may be a sound reason for the Court to be wary of constitutionalizing a strong journalist-source privilege, it has no relevance in the legislative context. Courts proceed on the basis of precedent, and they are quite sensitive to the dangers of “slippery slopes.” Legislation, however, properly considers problems “one step at a time.” For the Court to recognize a journalist-source privilege but not, for example, a privilege of journalists to engage in wiretapping would pose a serious challenge to the judicial process. But for Congress to address the privilege issue without fretting over journalistic wiretapping is simply not a problem.

Another of the Court’s concerns in Branzburg was that recognition of a journalist-source privilege would require it to decide who exactly qualifies as a member of the press. To see this question decided by the courts would fly in the face of more than 200 years of constitutional wisdom. But, again, this kind of constraint is much more manageable in the context of legislation. Government often treats different speakers and publishers differently. (Which reporters are allowed to attend a White House press briefing, to be embedded with the military? Broadcasting is regulated, but print journalism is not. And so on.) Differentiation among different elements of the media is constitutional, as long as it is not based on viewpoint or any other invidious consideration, and as long as the differentiation is reasonable.

Thus, even though the Court is rightly reluctant to define “the press” for purposes of the First Amendment, it would grant Congress considerable deference in deciding who, as a matter of sound public policy, should be covered by a journalist-source privilege. Indeed, this task has not proved to be a serious problem in all the locales where such a privilege has already been enacted.

In sum, the very weaknesses of the judicial process that make it difficult for a court to address this problem as a constitutional matter are precisely the strengths of Congress to address it as a legislative matter.

Geoffrey R. StoneUniversity of ChicagoChicago, Illinois

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To the Editor:

Contrary to Gabriel Schoenfeld, we need a federal shield law for journalists—not to place them (in his words) “above the law” but because, without one, it will be easier for the public to find itself under the thumb of a heavy-handed government. First Amendment protections exist to check the power of government. Exceptions to this principle are not made in the Constitution for national security or even for a time of war.

I do not worry when my colleagues in the news media expose possibly illegal government operations like the warrantless wiretapping of Americans by the Bush administration. I welcome the judgment of the American people as to whether the CIA should be operating a network of prisons in Europe, a judgment that could not be made until the Washington Post revealed their existence. And I believe that the parents of U.S. troops have a right to know if their government has lost confidence in the government of Iraq, whose authority their sons and daughters are risking their lives to establish.

The Society of Professional Journalists (SPJ), of which I am past president, is among the groups that believe the Bush administration is overclassifying documents and attempting to hide its policies from the American people. The society’s code of ethics calls on journalists to “seek truth and report it.” To do so, journalists often need not only analytical skills and gumption but also, occasionally, the ability to keep their secrets.

That ability, honored by many courts and past administrations, has given Americans assurance that they can confide in the press without personal consequences. It has given officials at all levels of government a way to alert the American people to alternative policy choices that their superiors would prefer to hide. The legitimacy of using leaks to maintain the transparency of government is such that the U.S. Supreme Court, in the 1971 Pentagon Papers case, refused to block the publication of confidential documents, despite the objection of the White House in a time of war.

The right of journalists to maintain confidences, even from government, is implicit in the First Amendment. As Mr. Schoenfeld himself points out, four federal appeals courts agree. It is worth noting that Branzburg v. Hayes, the 1972 case that dealt with reporters and grand-jury subpoenas, was narrowly decided. Four Justices argued in the dissent that journalists are entitled to a complete exemption from the requirement to testify, and even Justice Powell in his concurrence found reason to believe there are times when they should be exempt. So, apparently, did the Justice Department, which in the wake of Branzburg instituted guidelines that produced three decades of restraint in the summoning of reporters before grand juries.

Recent cases imply that such restraint is eroding, and the most recent appeals-court rulings have rejected the idea of a “reporter’s privilege.” In the Plame affair, 35 state attorneys general filed an amicus brief urging the Supreme Court to hear the cases of Judith Miller, Matthew Cooper, and Time, and to establish a qualified reporter’s privilege. The Court, as we know, declined to do so.

Given this legal climate, SPJ’s board voted in March 2005 to endorse on the federal level a solution that has worked in 31 states: a shield law. Are there problems with such a law? Absolutely, and some are correctly identified by Mr. Schoenfeld. Who should be covered? SPJ’s position is that one’s function rather than just one’s employment as a reporter should be the determining factor. Might Congress some day threaten to repeal the law in a bid to punish the news media? Perhaps, but that would leave journalists no worse off than they are now under the federal system.

Irwin GratzMaine Public Broadcasting NetworkPortland, Maine

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Gabriel Schoenfeld writes:

Since the publication of my article on the reporter’s privilege in February, the subject has become more interesting yet. The trial of Scooter Libby, which featured a parade of journalists on the witness stand testifying under oath about what they were told by confidential sources, has put the question of a shield law in the very center of attention.

But far more fascinating than the Libby matter, an anomaly in so many respects, is a more obscure proceeding: the BALCO investigation in San Francisco. In that case, reporters for the San Francisco Chronicle were illegally given access to confidential grand-jury testimony about the sale of steroids to professional athletes by BALCO, a “food supplement” firm.

The source of the illegal grand-jury leak, it came to light in mid-February, was a lawyer for the BALCO defendants by the name of Troy Ellerman. Immediately after the Chronicle story based on the leak appeared, Ellerman turned around and used it to ask the court for a mistrial, claiming that the breach of grand-jury secrecy made it impossible for his client to get a fair trial.

In other words, the confidential source in this instance had been exploiting the news media to subvert justice, and the journalists in question were used as tools in the fraud being perpetrated on the court. How did the journalists respond? They did not report Ellerman to the authorities; that would have entailed breaking their promise to him not to disclose his identity. Nor did they merely maintain a discreet silence. Rather, they went back to Ellerman in an attempt to harvest even more secret grand-jury testimony.

Ellerman has pleaded guilty to four felony counts of obstruction of justice. The Chronicle reporters do not face charges. But how was the public, and the cause of justice, served by their part in this charade? The episode is yet another telling example of how a reporter’s privilege—which would make such conduct almost impossible to uncover—could become a license for mischief, encouraging all sorts of leaks, and all sorts of publication of leaks, that run counter to the public interest and/or are against the law.

Turning now to my correspondents: the bulk of Geoffrey R. Stone’s letter can be distilled to a single proposition: the fact that the Supreme Court rejected a journalist’s privilege in Branzburg v. Hayes has no bearing on the merits of a legislatively enacted one, and I was “simply wrong” to assert otherwise.

Mr. Stone’s lengthy demonstration was unnecessary. Despite his evident impression to the contrary, I fully concur with him. Indeed, I explicitly stated that “nothing in White’s ruling barred Congress from establishing a reporter’s privilege as an act of law.” I then proceeded to enumerate various reasons why Congress would be unwise to do so. And that is where Mr. Stone and I part company.

To my mind, there are two salient objections to a legislatively enacted privilege. The first is the havoc it would wreak on our ability to protect national-defense information in an age in which the press already routinely publishes highly sensitive counterterrorism information without compunction. Mr. Stone says not a word about this particular aspect of the problem.

He does take up my other worry, which concerns the difficulty in determining, for the purposes of administering such a law, who qualifies as a member of the press. Here Mr. Stone is untroubled by the prospect of having Congress decide, “as a matter of sound public policy, [who] should be covered.”

But as I pointed out in my article, in legislation actually before Congress in its last session and being introduced again in the current one, a “journalist” is defined as a person who, “for financial gain or livelihood,” is engaged in the news business “as a salaried employee of or independent contractor” to a news agency. This definition, with its emphasis on monetary compensation, no doubt applies to many journalists. But it excludes many more, including the bloggers who are now reshaping the news business. (I cited the case of powerlineblog.com, which exposed the fraudulent documents employed by Dan Rather and CBS in their 2004 election-eve coverage of the military service of George W. Bush. I was remiss in not also crediting the detective work of Charles Johnson of littlegreenfootballs.com.)

It is true, as Mr. Stone points out, that the U.S. government does already now recognize journalists in various official ways, accrediting them to cover Congress or the White House, and selecting which ones can be embedded with our soldiers in Iraq. But such accreditation is a far cry from bestowing rights upon journalists that put them beyond the reach of the law and free them from the obligation of all citizens to give testimony before a grand jury or in a court of law when they have knowledge of a crime.

Like me, Irwin Gratz of the Society of Professional Journalists is also troubled by the way in which the legislation before Congress would select only some journalists for protection. His organization has suggested, in response, that “one’s function rather than just one’s employment as a reporter should be the determining factor.” But this would by no means solve the problem. Any effort to restrict this personal right to a few select professionals, whether it is limited by “function” or by “employment,” would put us on the road to an officially recognized journalism, and at the end of that road will be the evisceration of the right we all enjoy as ordinary citizens to gather and disseminate information at any moment we choose. The undemocratic elitism of the proponents of a shield law is appalling, even as it comes wrapped in bromides about “the public’s right to know.” “Freedom of the press,” as Justice White put it in Branzburg, is not a right “confined to newspapers and periodicals” but rather a “fundamental personal right” that attaches to all of us.

Mr. Gratz is certainly correct when he says that “First Amendment protections exist to check the power of government.” But is he also correct when he goes on from there to assert: “[e]xceptions to this principle are not made in the Constitution for national security or even for a time of war”?

The First Amendment, it is true, says nothing about any exceptions whatsoever. But the Constitution itself clearly recognizes the occasional need for keeping governmental information from the public; among other things, while requiring both Houses of Congress to keep a journal of their proceedings, it exempts “such parts as may in their judgment require secrecy.” What is more, two centuries of constitutional law make clear that the freedom of the press put forward by the First Amendment is fully compatible with a range of restrictions on what can be published, as in the laws of libel, commercial speech, campaign speech, obscenity, and on and on. It would be very strange if an area as vital to national survival as defense secrets were the one area in which the press was untrammeled by law.

In this respect, the Pentagon Papers case, which Mr. Gratz cites, is indeed relevant, but it does not support his position. True, the Court did not allow the Nixon administration to block the New York Times from publishing the classified documents that had come into its possession. The imposition of such a prior restraint ran against a long tradition in our law, and there was no statute on the books that would even have allowed for it. But a majority of the Justices in that decision indicated, with varying degrees of enthusiasm, that if the same case had come to them after publication, they would uphold or consider upholding a criminal conviction under the provisions of the law that restrict the dissemination and publication of national-defense information.

Mr. Gratz cites his society’s code of ethics that calls on journalists to “seek truth and report it.” But that same code has other, more pertinent provisions. One calls upon journalists themselves to “[e]xpose unethical practices of journalists.” Another calls upon journalists to “[e]ncourage the public to voice grievances against the news media.” My contention is that when journalists subvert the workings of justice, when they recklessly endanger our security, and when they seek to establish themselves as a high caste of public-policy truth-tellers beyond the reach and rule of law, the public has a set of legitimate grievances that need urgently to be sounded.